The author and activist is being prosecuted for a speech on Kashmir made at a conference 14 years ago. What’s astonishing: How FIRs in India are designed to offer authorities a bouquet of options to target an individual. If one charge doesn’t fit, just move on to the next.
Why is Arundhati Roy being prosecuted?
The seminar: On October 21, 2010, Arundhati Roy was an invited speaker at a conference on Kashmir organised by the Committee for the Release of Political Prisoners. The title of the event: ‘Azadi—the Only Way’. So the views expressed on Kashmir were fairly predictable.
The FIR: On November 27, 2010, an FIR was registered in Delhi based on the complaint filed by a Kashmiri activist named Sushil Pandit. He claimed that Roy—and a number of other speakers—“jeopardised public peace and security” by advocating for the separation of Kashmir from India—in their speeches. This is the exact extent of the crime—a speech made 14 years ago.
The incriminating speech: This is what Roy said:
About a week or 10 days ago, I was in Ranchi where there was a Peoples’ Tribunal against Operation Green Hunt—which is the Indian state’s war against the poorest people in this country—and at that tribunal, just as I was leaving, a TV journalist stuck a mic in my face and very aggressively said “Madam, is Kashmir an integral part of India or not? Is Kashmir an integral part of India or not?” about five times.
So I said, look, Kashmir has never been an integral part of India. However aggressively and however often you want to ask me that. Even the Indian government has accepted, in the UN, that it’s not an integral part of India. So why are we trying to change that narrative now?
Roy then goes on to describe India as a ‘colonising power’ that has been waging war against its own people—be it in Kashmir or Manipur—since Independence. You can read the long speech—in its entirety—over at Outlook magazine.
Also see: The viral clip of the speech is below:
And that’s the crime? Saying Kashmir is not part of India?
Yes. And it is the basis of a dizzying array of charges—listed on the original FIR. But the complaint lay dormant for 14 years—until 2023. For the past year, the Delhi Lieutenant Governor VK Saxena has been trying to pick the most effective criminal charge from this tempting buffet.
The first round pick: Last year, Saxena sanctioned (greenlit) Roy’s prosecution under three sections of the Indian Penal Code.
- Doing acts prejudicial to maintenance of harmony (Section 153A)
- Making imputations, assertions prejudicial to national-integration (Section 153B)
- Making statements conducive to public mischief (Section 505)
But, but, but: It was an unwise move because all three alleged crimes have passed their statute of limitations:
Under Section 468 of the Code of Criminal Procedure, no court shall take cognisance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation. Sub-section (2) [c] of Section 468 says that the period of limitation shall be three years, if the offence is punishable with imprisonment for a term exceeding one year, but not exceeding three years.
Translation: Charges under these three sections carry a punishment of one year—and no more than three. Therefore, Roy should have been charged within three years of her alleged crime—i.e by October 10, 2013.
No hope for sedition: Saxena could have picked the charge of sedition under Section 124A—which does not have any statute of limitation. Unfortunately, the Supreme Court delivered a landmark judgement in 2022 suspending “all pending trials, appeals and proceedings” related to sedition charges—because the draconian colonial law is unconstitutional. So the sedition charge in the FIR against Roy can no longer be prosecuted. (Never mind that the government has now passed new laws that make the old sedition statute look tame)
The genius move: On June 14—stymied on all other fronts—the Lieutenant Governor finally settled on prosecuting Roy under Section 13 of the Unlawful Activities (Prevention) Act aka UAPA. It has no statute of limitations—and is the terrible anti-terror twin of the sedition laws.
What’s Section 13 exactly?
Let’s start with a quick intro to UAPA. Here’s how this law works:
- UAPA allows any person who is charged with “unlawful activities” to be declared a “terrorist”—and arrested under those charges.
- Yes, the definition of what is unlawful or who is a terrorist is terrifyingly vague.
- And no—thanks to a 2019 Supreme Court ruling—the authorities can simply declare that they have evidence to make a prima facie case. The courts have limited authority to challenge that evidence.
- Evidence can be withheld for ‘national security’ purposes at the time of the arrest.
- And the person can be held for extended periods of time without a proper charge sheet or bail.
Big point to note: This is also why UAPA cases are thrown out—for lack of evidence—once they are brought to trial. But by then, the person has spent months on end in jail—punished for a non-existent crime.
As for Section 13: It says that anyone who “takes part in or commits, or advocates, abets, advises or incites the commission of, any unlawful activity, shall be punishable with imprisonment for a term which may extend to seven years and shall also be liable to fine.” Presumably, Roy’s speech fits that definition—at least according to the LG.
Really? Has anyone been prosecuted just for a speech?
Sure, the courts have made it very clear that Kashmir is an exception to the right of free speech. In 2022, the J&K High Court rejected the plea by Kashmiri lawyer Muzamil Butt—claiming that his Facebook posts were covered by the right to free speech. The reason: One of his posts described the army as “cancer”—and an occupying force. The other called people of Kashmir slaves of the government.
According to the presiding judge:
In my opinion, the freedom of speech and expression guaranteed under the Constitution cannot be stretched to such a limit as to allow a person to question the status of a part of the country or its people…
By making these comments, he is certainly advocating and supporting the claim that Jammu and Kashmir is not a part of India and that it is occupied by the Indian military with the people having being reduced to the status of slaves. Thus, he is questioning the sovereignty and territorial integrity of the country.
Law to note: Butt was charged under Section 2(o) of the UAPA. It prohibits any unlawful activity that:
- is intended, or supports any claim, to bring about, on any ground whatsoever, the cession of a part of the territory of India, or
- disclaims, questions, disrupts, or is intended to disrupt the sovereignty and territorial integrity of India; or
- which causes or is intended to cause disaffection against India.
This includes any action by an individual or organisation—by act or words—spoken or written. In other words, advocating secession of Kashmir—explicitly or otherwise—is absolutely a crime.
But, but, buy: As with any law in India, authorities choose who to prosecute—and who to ignore. For example, JNU professor Nivedita Menon said something very similar in 2016:
Menon became the target of an enraged rightwing campaign—and removed as chairperson of Centre for Comparative Politics and Political Theory at JNU. But she remains a professor at JNU. And there is no sign that she will be prosecuted… for now.
So Roy is going to end up in jail?
Well, some legal experts are sceptical. For example, V Venkatesan in Frontline points out the following:
One: Roy is charged under Section 13—which falls under Chapter III of the UAPA law. According to its provisions, no court can “take cognisance” of any UAPA offence in this chapter—unless the prosecution has been sanctioned by the union government—or by an officer authorised by the union government. So the Delhi LG may not have legal standing here.
Two: The sanction for prosecution must be based on evidence vetted by an independent authority. That is not possible in this case since the Delhi police is nowhere close to filing a chargesheet in this case. There is no evidence to review—as of now.
Three: The Supreme Court has also made it clear that the authority that sanctions the prosecution must “apply its mind” to all the relevant facts and evidence presented—and show that it has done so. The LG, however, has not shared the material upon which he based his decision.
The bottomline: The real crime here is that FIR. The government had absolute impunity to do whatever it pleased the moment it was filed. That it took 14 years to exercise that power is besides the point. But here’s the kicker: When the complaint was first filed in 2010, “The court asked for a police report, but the Delhi police did not think the speeches warranted prosecution for sedition.” The magistrate then overruled the police and directed the registration of this all-purpose, evergreen FIR.
Reading list
The Guardian and The Hindu have the LG’s move to sanction the prosecution—and the response to it. The best piece on the law is V Venkatesan’s analysis in Frontline. Outlook has Roy’s speech in entirety. Indian Express lays out why Roy is being prosecuted under UAPA. Scroll and NewsLaundry have details on the J&K case. The Wire has more on the unofficial ban on commenting on Article 370—if you live in Kashmir. Al Jazeera has the case of the college kids prosecuted under UAPA for celebrating Pakistan’s win in the World Cup—back in 2021.
